SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 05-30/12
DATE: 20120620

IN THE MATTER OF the Declarations of Death Act, 2002 , S.O. 2002, c. 14 as amended

IN THE MATTER OF the Absentees Act, R.S.O. 1990, c. A. 3 , as amended

IN THE MATTER OF the Application of John D. Puffer

AND IN THE MATTER OF Robert Alan Puffer of the City of Toronto, in the Province of Ontario

BEFORE: Mr. Justice Lederer

COUNSEL: Nadia Harasymowycz , for John D. Puffer
No one else appearing

HEARD: June 13, 2012

ENDORSEMENT

[ 1 ] I begin by noting that, by order of Madam Justice Chapnik, made on May 14, 2012, the Public Guardian and Trustee was removed as a party to these proceedings and the title of proceedings amended to remove reference to any party save and except for the applicant, John D. Puffer.

[ 2 ] Robert Alan Puffer disappeared on June 26, 2007. He has not been seen or heard from by any acquaintance, friend, or member of his family since that day. At the time of his disappearance, Robert Alan Puffer had "no significant debts" and "net assets valued at $760,000". His only ongoing expense of note was the carrying cost of a cottage. Since his disappearance, this has been paid for by his parents. The applicant, John D. Puffer, is the brother of Robert Alan Puffer. On January 12, 2006, Robert Alan Puffer executed a Last Will and Testament. It appointed John D. Puffer as the sole executor and trustee of the estate of Robert Alan Puffer. By this application, John D. Puffer seeks an order declaring that his brother died on the day he disappeared or, in the alternative, a declaration that Robert Alan Puffer is an "absentee" and an order appointing John D. Puffer as committee of the property of Robert Alan Puffer and approving the "Management Plan of the Applicant".

[ 3 ] It is easy to understand that the assets of Robert Alan Puffer should be looked after and managed. While nothing specific was said, it is not hard to imagine that those who knew Robert Alan Puffer, while not wanting to forget, may wish to deal with whatever has been left unresolved by his disappearance.

[ 4 ] The application is made pursuant to the Declarations of Death Act, 2002 , S.O. 2002, c. 14, Sched. The jurisdiction to declare that a person has died is found in this legislation at section 2(3) :

The court may make an order declaring that an individual has died if the court is satisfied that either subsection (4) or (5) applies.

[ 5 ] There are two circumstances in which such a declaration may be made. The first is when "the individual has disappeared in circumstances of peril" (see: Declarations of Death Act, 2002, s. 2(4)); and the second is when "the individual has been absent for at least seven years" (see: Declarations of Death Act, 2002, s. 2(5)). In each case, it must be shown that:

• reasonable inquiries having been made, the individual has not been heard from since his or her disappearance, or has been absent for seven years (see: Declarations of Death Act, 2002, s. 2(4)(b), 2(4)(c), 2(5) (b) and 2(5)(c));

• the applicant has no reason to believe the individual is alive (see: Declarations of Death Act, 2002, s. 2(4)(d) and 2(5) (d)); and,

• there is evidence to find that the individual is dead (see: Declarations of Death Act, 2002, s. 2(4)(e) and 2(5) (e)).

[ 6 ] As I have already noted, Robert Alan Puffer disappeared on June 26, 2007. This application was heard on Wednesday, June 13, 2012. This is less than seven years ago. Accordingly, this application relies on section 2(4) of the Declarations of Death Act, 2002 .

[ 7 ] On the day he disappeared, Robert Alan Puffer informed his sister, Judy Higgins, that he was leaving to go to the cottage. He was seen that evening by his parents. The applicant, John D. Puffer, believes this is the last contact anyone had with his brother. The following day, June 27, 2007, John D. Puffer called the cottage. No one answered. As a result, on June 28, 2007, John D. Puffer travelled to the cottage looking for Robert Alan Puffer. He was not there. John D. Puffer searched the property and discovered that a green kayak was missing.

[ 8 ] Even before John D. Puffer attended at the cottage, on June 27, 2007, Judy Higgins contacted the Metropolitan Toronto Police Department and alerted them that her brother was missing. They commenced an investigation which yielded no results. John D. Puffer tracked the bank accounts of his brother. There has been no activity since the date of his disappearance. A website was launched to assist the police in their investigation. On February 4, 2008, the website received a post from Thunder Bay about a possible sighting, but it was determined that the person observed was not Robert Alan Puffer. The website was shut down during June, 2008. It had not generated "any useful leads". Posters of Robert Alan Puffer and the missing kayak were put up throughout Haliburton, the Kawarthas, Muskoka and Algonquin Park. No information was received in response to the posters. There was significant media coverage following the disappearance of Robert Alan Puffer, including articles in the Globe and Mail, The Times (Minden, Ontario), the front page of the Haliburton County Echo, the front page of the Sudbury Star, the Toronto Star, Cottage Life magazine, as well as "North America's Missing Person" website and the "GTA’s Most Wanted on Roger’s [ sic ] Cable Network". This, too, produced no information about Robert Alan Puffer.

[ 9 ] There was also an investigation carried out by the Ontario Provincial Police. On August 26, 2007, a motor vehicle of Robert Alan Puffer was discovered in a parking lot behind the "Quarter Deck Gift Shop" in Killarney, Ontario. Glasses belonging to Robert Alan Puffer, a sleeping bag and clothes were left in the car. It was not locked. "The arrangement of the seats, and the shape of the ark of sand in the vehicle, evidenced that [Robert Alan Puffer] had transported [the] kayak to the dock in Killarney" (see: Affidavit of John D. Puffer , sworn March 7, 2012, at para. 29). Following recovery of the vehicle, the Ontario Provincial Police contacted all of the accommodation and restaurant facilities in the Killarney area. A waitress claimed that she had served coffee to Robert D. Puffer in early July. John D. Puffer does not accept that the person served was his brother. He says that Robert Alan Puffer "was not a coffee drinker" (see: Affidavit of John D. Puffer , sworn March 7, 2012, at para. 30). On August 27, 2007, the Ontario Provincial Police commenced a search for Robert Alan Puffer and the missing kayak. They searched by ground, used underwater divers, engaged in three days of search by air and conducted a week-long search by boat. On October 18, 2008, a further search of Bedgerly, Center and Partridge Islands was conducted (see: Affidavit of John D. Puffer , sworn March 7, 2012, at paras. 31 and 32).

[ 10 ] On December 22, 2008, the sister and brother of Robert Alan Puffer (Judy Higgins and John D. Puffer) hired a private investigator. He searched the available public records in Canada and the United States, but failed to locate any "financial footprint" of Robert Alan Puffer left after the date of his disappearance (see: Affidavit of John D. Puffer , sworn March 7, 2012, at paras. 33 and 34).

[ 11 ] Sometime during May, 2008, a further search was conducted by helicopter. None of these efforts yielded fresh information as to what had happened to Robert Alan Puffer (see: Affidavit of John D. Puffer , sworn March 7, 2012, at para. 35).

[ 12 ] Based on this, I have no difficulty in finding that reasonable inquiries were made and that neither the applicant nor any other person has heard of or from Robert Alan Puffer (see: Declarations of Death Act, 2002, s. 2(4)(b) and (c)). Similarly, I have no difficulty in finding that the applicant (John D. Puffer) has no reason to believe that Robert Alan Puffer is alive (see: Declarations of Death Act, 2002, s. 2(4)(d)). In the circumstances, this would require some positive information demonstrating that Robert Alan Puffer was alive sometime after the date of his disappearance. As it is, there has been no positive response to any of the inquiries, investigations or other efforts made to locate Robert Alan Puffer.

[ 13 ] This takes me to the element of the test that sets s. 2(4) of the Declaration of the Death Act, 2002 apart from s. 2(5) . When he disappeared was Robert Alan Puffer "in circumstances of peril"?

[ 14 ] What places a party "in peril"? In considering a similar application, Madam Justice Parfett began by quoting the definition of "peril" as found in the English Oxford Dictionary. It is "… a situation of serious and immediate danger "(see: Poole v. Poole , 2008 CarswellOnt 4103, 41 E.T.R. 223 at para. 5 ; and, The Concise Oxford Dictionary , Ninth Edition , Clarendon Press, Oxford 1995). In and of itself, taking a kayak to a location suitable for its use and putting it in the water is not placing oneself in immediate danger. There has to be more. In this case, in or about 1992, Robert Alan Puffer sought treatment for what is described as "a generalized anxiety disorder and obsessive-compulsive disorder". He was described as having "…received ongoing treatment from his former physician" (see: Affidavit of John D. Puffer , sworn March 7, 2012, at para. 10). During November, 2006, Robert Alan Puffer was discovered in his car "at our mainland cottage parking lot" having overdosed on alcohol and pills. In his affidavit, John D. Puffer referred to this as "the suicide attempt"(see: Affidavit of John D. Puffer , sworn March 7, 2012, at paras. 11 and 12). In a follow-up meeting, the doctor is reported to have asked Robert Alan Puffer if he was to kill himself, how would he choose to do so? His response was that "…he would sedate himself with medication, and walk into a lake" (see: Affidavit of John D. Puffer , sworn March 7, 2012, at para. 12).

[ 15 ] In the months leading up to his disappearance, Robert Alan Puffer is described as demonstrating behaviour that worried those close to him. They were concerned that he might be considering suicide. As a result, he was taken to hospital where he stayed for two weeks undergoing a full psychiatric assessment. He was prescribed medication to help him cope with his obsessive-compulsive disorder, generalized anxiety disorder and bipolar affective disorder. The discharge notes, which were included in the record, indicate that Robert Alan Puffer stated that, over the last two years, he began having obsessive thoughts of self-harm that were intrusive and not reflective of true suicidal intent. At the same time, he acknowledged having "passive suicidal ideation up until three weeks prior to admission". "His mental status on discharge was not grossly different from that on admission, aside from a lack of any suicidal ideation for approximately one week…" (see: Affidavit of John D. Puffer , sworn March 7, 2012, at para. 14 and Exhibit B). Robert Alan Puffer was discharged from the hospital on May 18, 2007. During June 2007, John D. Puffer noticed that his brother’s physical condition appeared to be worsening. Robert Alan Puffer admitted that he had stopped taking his medications (see: Affidavit of John D. Puffer , sworn March 7, 2012, at para. 15).

[ 16 ] The question is whether past actions and evidence of an inclination to suicide, in company with the parked car at the dock and the absence of the kayak, are enough to find that Robert Alan Puffer was in "circumstances of peril" when he disappeared. Was he "in a situation of serious and immediate danger"?

[ 17 ] To me, this is not a simple question and there can be no clear answer.

[ 18 ] Generally, a person is at peril as a result of events or circumstances that are external to the individual. Natural occurrences like hurricanes, earthquakes and forest fires put people at peril. Man-made events, like war or falling buildings, may place a person in serious and immediate danger. There are circumstances where an individual may place himself, or herself, at peril; for example, by driving a car in a winter storm. It may be possible for someone intent on suicide to be at peril. Suppose that, while proceeding across a bridge, a driver sees someone standing on a ledge, outside the protective barrier, looking at the river below. In the short time it takes to stop the car and run back, the person disappears. It does seem the missing individual could reasonably be said to have been at peril. But does this conclusion extend to a situation where friends and family have reason to be concerned that a missing person could have been considering suicide where the evidence of his disappearance is an empty car and a missing kayak by a dock?

[ 19 ] In Poole v. Poole, supra , the court considered "whether severe depression and risk of suicide... constitutes circumstances of peril" (see: Poole v. Poole, supra at para. 5). In that case:

• the severe depression of the individual;
• the fact that, in the past, he had tried to commit suicide;
• the fact that his psychiatrist felt he was at risk of harming himself; and,
• that he had told his psychiatrist that the next time he tried to commit suicide he would do it right and that nobody would find him; and,
• finally, the fact that he left his affairs in order, with the suicide note

all served to contribute to the conclusion that the man was at peril and led the judge to declare that he died on the date he disappeared.

[ 20 ] Interestingly, in discussing examples of situations where it would be clear that a person was at peril, the judge referred to a person who disappears while out on a boat and only the empty boat returns (see: Poole v. Poole, supra , at para. 5).

[ 21 ] The case I am to decide is different and, to my mind, more difficult to resolve. There was no suicide note or any other direct statement or demonstration of the decision of the missing person to commit suicide. I do not regard the existence of the will as an indication of such an intention. The will was dated January 12, 2006, which is to say, a year-and-a-half before the disappearance of Robert Alan Puffer.

[ 22 ] There was evidence, both here and in Poole v. Poole , that the party who had disappeared had attempted suicide in the past. That said, the description of Robert Alan Puffer as to how he would commit suicide, in the future, was in response to a specific question from his doctor. It was not demonstrative of any intention to carry out the plan. This is consistent with the discharge note which observed that, while he had thoughts of suicide, these were "mostly intrusive and not reflecting true suicidal intent" (see: Affidavit of John D. Puffer , sworn March 7, 2012, at Exhibit B). There is no suggestion that, at the time, the psychiatrist responsible for the care of Robert Alan Puffer thought he was at risk of self-harm. Again, the discharge note indicated there was no self-harm ideation while he was a patient at the hospital. As well, although there is nothing in the material from which to draw the distinction, it does seem clear that there is a difference between "severe depression and risk of suicide", as referred to in Poole v. Poole (see: para. 5) and "generalized anxiety disorder and obsessive-compulsive disorder" referred to as describing the condition of Robert Alan Puffer (see: Affidavit of John D. Puffer , sworn March 7, 2012, at para. 10).

[ 23 ] Insofar as the example of the boat is concerned, it may be reasonable to infer that Robert Alan Puffer got in the kayak and paddled away, but there is no substantive evidence that this occurred and the fact is the kayak was never found, empty or otherwise. In a second affidavit, this one sworn on June 3, 2012, John D. Puffer explained that, as a result of its size and depth, dredging Lake Huron was impractical. The fact remains that divers searched the waters near the town of Killarney and did not recover any evidence in respect of the disappearance of Robert Alan Puffer (see: Affidavit of John D. Puffer , sworn June 3, 2012, at paras. 3 and 4).

[ 24 ] It may be that, in the normal course, left without limitation, it would not be difficult to conclude that Robert Alan Puffer committed suicide and is dead. As it is, the legislation does put limitations in place. The Legislature has indicated an intention that, as prescribed by these limits, care be taken before the sort of declaration being asked for in this case is made.

[ 25 ] There are three limitation to which I refer. The fact that there is evidence to find the person is dead is not to enough on which to base the declaration (see: Declarations of Death Act, 2002, s. 2(4)(e)). Such evidence may not demonstrate definitively that the person is dead, only that there is evidence on which a finding of death could be made. To provide greater certainty, the Declarations of Death Act, 2002 requires that the person disappeared in circumstances of peril (see: Declarations of Death Act, 2002, s. 2(4)(a)).

[ 26 ] The significance of this is confirmed by the fact that the legislation provides a second limitation expressed as a further alternative. If it is not clear whether the person was in circumstances of peril when he or she disappeared, those involved may wait until the person has been absent for seven years. At that point, it is no longer necessary to demonstrate that the person was in a circumstance of peril at the time he or she disappeared (see: Declarations of Death Act, 2002, s. 2(5)(a)).

[ 27 ] Finally, the Legislature has accounted for the difficulties a delay may cause by its promulgation of the Absentees Act , R.S.O. 1990, c. A. 3. This is the legislation under which the applicant seeks, as an alternative remedy, an order that Robert Alan Puffer is an absentee, as defined by that Act (see: Absentees Act , supra at s. 1 ) and appointment as the committee of the property of his brother. Like the Declarations of Death Act, 2002 , the Absentees Act requires that such an order can only be made if it is shown that satisfactory inquiry has been made. In this case, the court is given the broader power of being able to direct such further inquiry should that be considered necessary. In other words, the requirements of the two statutes can be read as a continuum with this provision ensuring that a final determination based on appropriate inquiry can be made. The presence of a continuum is recognized by the legislation. The Declarations of Death Act, 2002, s. 3 specifically provides that if, on an application to declare someone dead, the court is not satisfied that there is sufficient evidence to justify the order, the court is empowered to make an order under the Absentees Act , s. 3 declaring the person an absentee.

[ 28 ] To me, this only confirms the intention of the Legislature that care be taken and the appropriate certainty be present before a declaration of death is made.

[ 29 ] The power of the law is diminished and the courts fail in their responsibility if they do what they may wish in preference to the intention of the Legislature. In this case, as much as it may appear that Robert Alan Puffer has died and as much as it may seem that there is little to be gained by failing to declare him dead, this situation does not comply with the requirements of the Declarations of Death Act, 2002 . To my mind, it has not been demonstrated that, at the time he disappeared, on a balance of probabilities, Robert Alan Puffer was in circumstances of peril as called for by that legislation. The fact that he had, on one occasion in the past, taken sleeping pills that could have killed him, the fact that his family was concerned and had not long before placed him in a hospital to be assessed is not enough to conclude he was suicidal and, thus, in a circumstance of peril. The discharge notes tend to confirm this conclusion. This does not change because his car was found in a parking lot near the water and that there was some indication of the missing kayak being taken from the car to the water. There is not enough here to show he went out on the water with the intent of killing himself.

[ 30 ] In the circumstances, I will not make the order declaring that Robert Alan Puffer is dead. On the other hand, I have no difficulty finding that he is an absentee and appointing his brother, John D. Puffer, committee of his property.

[ 31 ] Finally, I repeat that, in the circumstances, the application also requests that I approve the Management Plan of the applicant. No reference was made to a Management Plan at the time this matter was raised in court. So far as I can see, neither of the affidavits of John D. Puffer refers to such a plan. The first of the two affidavits does say that John D. Puffer "will maintain his [brother’s] property and keep accurate records of all my transactions regarding [Robert Alan Puffer's] property" (see: Affidavit of John D. Puffer , sworn March 7, 2012, at para. 47).

[ 32 ] In the event that counsel believes the approval of the court is necessary and a Management Plan has been prepared, I may be spoken to in order to facilitate the resolution of this aspect of the matter.

[ 33 ] There is no one to award costs in favour of or against. No costs.

LEDERER J.

Date: 20120620